If the "doctrine of big questions" provides Congressional guidance for crafting bills that provide clarity, remedy, and consequences for deviating from the language of a law, isn't it a bit ironic that the current SCOTUS ruling provides no guidance on tariff refunds? Especially since the topic came up in arguments? Just a couple of sentences regarding the record keeping of tariffs, the holding agency, and how typical (tax) refunds are performed for individuals and businesses every year would have been sufficient rather than letting the pearl clutching continue about "oh, we cannot figure out how to refund this money" -- Those refunds should be immediately available to businesses -- quickly, easily, without a lot of paperwork, and without costly legal guidance necessary. Too much to hope for?
Another example of how SCOTUS is desperate to support daddy - an offering of nubile virgins not available - as bestest they can … with delay and little actual guidance.
More political theater from the Supreme Court. I thought Justice Kagan was on the side of the people. They have been planning this coup for decades. Peter Thiel flew on Epstein’s plane with Russell Vought. Look at Former Prince Andrew’s text to Jeffrey Epstein on 6/19/2010. Ellie Leonard has been posting his email exchanges. This one is in Part 2. 😡
Thank you Lisa and Public Notice! The SCOTUS is officially a kangaroo court. Got it.😞
Ah, apparently SCOTUS - at least the conservatives therein - have freely adopted Trump’s language of pettiness and personal grievance into their vaunted discourse.
If we have an actual election in 28 and we manage to keep Republicans from stealing the government again, the entire judiciary needs to be purged of Republican judges, starting with the illegitimate federalist society hacks on the supreme court.
When Democrats control the House and the Senate they may want to consider modifying statutes, and creating new statutes that follow the example of the Internal Revenue Code (IRC). For example, IRC §1502 authorizes the Treasury Secretary to prescribe regulations for the filing of consolidated corporate tax returns. All of the rules to do this are pretty much in the regulations, not in the couple of statutes governing these returns. Taxpayers can contest the specifics in a regulation, but they have an uphill battle in the courts.
Wrote a long piece comparing the "Liberal Activist decisions" and the conservative decisions.
Mostly boiled down to liberals deciding rights actually applied to people and the constitution mattered. Conservatives deciding money has more rights, that religious decisions over-rule individual's rights, the 'Unitary Executive theory' is the highest law of the land, except when they realize they went too far... and that discrimination really is not important...
Then realized it was far too long and still not comprehensive enough.
Bottom line is that we need to take the politics out of our judiciary, and money out of our politics. Once those two things happen, other problems can be fixed. Until those two things happen, little else can be fixed properly, and certainly none of the BIG problems.
I remember when Conservatives accused 'Activist' judges of 'creating new law'.
They always accuse others of what they want to do (or have done).
Excellent article clarifying their underlying philosophy for ignoring the law or the constitution.
I just 'love' how these Conservatives justify their reasons for removing rights from people or expanding the power of the Presidency, or the Judiciary, though where they draw the line seems to be a matter of personal (political? / Religious? / Bribes?) preference versus any actual theory of the law, the constitution or their oaths.
Of course, the most efficient way for Trump to get what he wants on the tariffs is to get his Republican-majority Congress to give it to him. But when a reporter (finally!) asked him last week why he doesn’t just go that route, Trump answered that “he doesn’t have to.”
Trump's tariff tantrums are wildly unconstitutional. The part of the majority opinion addressing Federalist 58 and the part of the opinion of Justice Gorsuch criticizing Justice Thomas’s opinion are closest to telling the truth (being faithful to our Constitution). The opinions of Justices Thomas and Kavanaugh are worse than worthless.
As SCOTUS often emphasizes, the starting point of all attempts to faithfully comply with our Constitution must begin with its plain text. Most such efforts also should begin where our Constitution begins, i.e., by acknowledging that the People acted as the supreme legislative body for the United States (and the only legislative body for the United States in 1788).
“We the People of the United States” did in June 1788 (when the 9th state ratified the Constitution) “ordain and establish this Constitution for the United States of America” to “secure the Blessings of Liberty to ourselves and our Posterity.” To protect “ourselves and our Posterity,” the People declared “the supreme Law of the Land” and declared that “the Judges in every State shall be bound thereby” despite “any Thing” anywhere “to the Contrary.” The People also declared that “all executive and judicial Officers" and all legislators "of the United States and of [all] States” are “bound” always “to support this Constitution” in all official conduct.
Contrary to the lies of Justice Thomas about legislative powers, the very first legislative power of Congress in Article I, Section 8 is “To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”
Article I, Section 10 also specifically prohibited related powers or reserved related powers to the states. Note the emphasis on absolute necessity. The president likewise cannot have the power to impose tariffs "without the Consent of the Congress" except when "absolutely necessary." “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.”
Article I, Section 9 also emphasized that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”
Moreover, Article I includes a crucial and categorical limitation on even the powers of Congress relevant here. The first sentence of Section 7 emphasizes that absolutely “All Bills for raising Revenue shall originate in the House of Representatives.”
Trump, himself, insisted that tariffs were imposed to raise revenues. He did so again in the State of the Union Address (saying tariffs will replace income taxes). Trump clearly illegally usurped the power to impose the tariffs that he arbitrarily made up. Trump’s current whining about SCOTUS not telling him what to do with all the revenue he raised only further highlights the illegality of what he did.
Vesting the powers to raise revenue exclusively in the House of Representatives always has been one of the most important pillars of the separation of powers between the sovereign people and all our public servants. Throughout American history, no exercise of actual or purported government power has made Americans literally fighting mad more than taking money out of their pockets.
One of the primary purposes of the entire American Revolution was to preclude “taxation without representation.” “No taxation without representation” is, to this day, the most famous rallying cry of the Revolution. To the people of the American Revolution, representation (regarding taxation) meant something specific—representation in Parliament, i.e., the body that had the power to legislate. That principle (and more) was addressed explicitly in our Constitution. To the people who wrote and ratified our Constitution, representation (regarding taxation) meant especially in the House of Representatives (hence the name).
The members of the House of Representatives are the representatives of the people who (from the outset) were most directly and most often subject to the approval or removal directly by the people. The second sentence of Article I emphasized that the people can replace any or even all the members of the House every two years: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” That is a crucial limitation on the power of the House to initiate laws for which we, the people, will have to pay.
All the opinions improperly emphasizing the “major questions doctrine” (the duty of Congress to be specific when it intends to delegate major powers) failed to consider the plain text of our Constitution and its plain purpose. The major questions doctrine is irrelevant to this issue. Moreover, it is a dangerous red herring.
James Madison in Federalist No. 58 emphasized the following crucial principles (at which the majority opinion in Learning Resources barely hinted):
"The [People vested in the] House of Representatives [the power to] refuse, [and vested in the House] alone [the power] propose, the supplies requisite for the support of government. [The People vested in Congress, alone, the power to] hold the purse [which is a most] powerful instrument by which we behold, in the history of the British Constitution, [the] representation of the people gradually [attaining the power of] reducing [ ] all the overgrown prerogatives of the other branches of the government [i.e., the executive and judicial branches]. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance [against the executive or judicial branch] and for carrying into effect every just and salutary measure [including those governing the executive or judicial branches]."
The People began Article I by emphasizing that “All legislative Powers” that were “granted” by the People “herein” (in our Constitution) were “vested in a Congress of the United States.” Obviously, the People vested in Congress, alone, the power to raise revenue or to govern international trade by means of any imposts or duties. The People began Article II by emphasizing that the People “vested in a President” only “executive Power.” Then, the People explained to the Congress and the President (and federal judges) the difference between legislative powers and executive powers that are relevant here.
In Article II the People commanded that the President “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.” If the president thinks tariffs are necessary and expedient, he must make the case to Congress. If he needs help making his case, “he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.”
Article I, Section 8 concluded by emphasizing that Congress, alone, has the power “To make all Laws” that are “necessary and proper for carrying into Execution [Congress’s enumerated] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof,” i.e., in the executive or judicial branches.
Article I, Section 7 commands the President to either “approve [Every Bill and] sign it” or “return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.” Then, Article II commands, the president “shall take Care that the Laws be faithfully executed.”
The foregoing provisions show generally how the executive power and the legislative power are required by the People by our Constitution to work together to represent the people and support our Constitution. Powers were separated and woven together into a fabric of government. The President must “give to the Congress Information” and “recommend to their Consideration such Measures as he shall judge necessary and expedient.” Congress must “make all Laws” that are “necessary and proper for carrying into Execution” absolutely all” the “Powers” that the People “vested” in anyone “by this Constitution.” The President must “approve [Every Bill and] sign it” or “return it, with his Objections.” Congress must address or override the President’s objections. After Congress has done so, the Bill “shall become a Law” and the President “shall take Care that the Laws be faithfully executed.”
The foregoing illustrates how ours is “a government of laws, and not of men,” as John Adams put it in the Massachusetts Constitution of 1780, as Chief Justice John Marshall (writing for SCOTUS) reminded us in Marbury v. Madison in 1803, and as Justice Scalia reminded us in his dissenting opinion in Morrison v. Olson in 1988.
Outstanding piece: thorough, clear -- esp. last 3 para. Thank you.
Great piece, Lisa. While so many of us like the decision against Trump, detailing how SCOTUS got there is equally important 🙏🙏🙏
If the "doctrine of big questions" provides Congressional guidance for crafting bills that provide clarity, remedy, and consequences for deviating from the language of a law, isn't it a bit ironic that the current SCOTUS ruling provides no guidance on tariff refunds? Especially since the topic came up in arguments? Just a couple of sentences regarding the record keeping of tariffs, the holding agency, and how typical (tax) refunds are performed for individuals and businesses every year would have been sufficient rather than letting the pearl clutching continue about "oh, we cannot figure out how to refund this money" -- Those refunds should be immediately available to businesses -- quickly, easily, without a lot of paperwork, and without costly legal guidance necessary. Too much to hope for?
Another example of how SCOTUS is desperate to support daddy - an offering of nubile virgins not available - as bestest they can … with delay and little actual guidance.
More political theater from the Supreme Court. I thought Justice Kagan was on the side of the people. They have been planning this coup for decades. Peter Thiel flew on Epstein’s plane with Russell Vought. Look at Former Prince Andrew’s text to Jeffrey Epstein on 6/19/2010. Ellie Leonard has been posting his email exchanges. This one is in Part 2. 😡
Thank you Lisa and Public Notice! The SCOTUS is officially a kangaroo court. Got it.😞
Ah, apparently SCOTUS - at least the conservatives therein - have freely adopted Trump’s language of pettiness and personal grievance into their vaunted discourse.
If we have an actual election in 28 and we manage to keep Republicans from stealing the government again, the entire judiciary needs to be purged of Republican judges, starting with the illegitimate federalist society hacks on the supreme court.
When Democrats control the House and the Senate they may want to consider modifying statutes, and creating new statutes that follow the example of the Internal Revenue Code (IRC). For example, IRC §1502 authorizes the Treasury Secretary to prescribe regulations for the filing of consolidated corporate tax returns. All of the rules to do this are pretty much in the regulations, not in the couple of statutes governing these returns. Taxpayers can contest the specifics in a regulation, but they have an uphill battle in the courts.
Another reason I'm still mad that Biden didn't pack the court when he should have.
Wrote a long piece comparing the "Liberal Activist decisions" and the conservative decisions.
Mostly boiled down to liberals deciding rights actually applied to people and the constitution mattered. Conservatives deciding money has more rights, that religious decisions over-rule individual's rights, the 'Unitary Executive theory' is the highest law of the land, except when they realize they went too far... and that discrimination really is not important...
Then realized it was far too long and still not comprehensive enough.
Bottom line is that we need to take the politics out of our judiciary, and money out of our politics. Once those two things happen, other problems can be fixed. Until those two things happen, little else can be fixed properly, and certainly none of the BIG problems.
I remember when Conservatives accused 'Activist' judges of 'creating new law'.
They always accuse others of what they want to do (or have done).
Excellent article clarifying their underlying philosophy for ignoring the law or the constitution.
I just 'love' how these Conservatives justify their reasons for removing rights from people or expanding the power of the Presidency, or the Judiciary, though where they draw the line seems to be a matter of personal (political? / Religious? / Bribes?) preference versus any actual theory of the law, the constitution or their oaths.
Of course, the most efficient way for Trump to get what he wants on the tariffs is to get his Republican-majority Congress to give it to him. But when a reporter (finally!) asked him last week why he doesn’t just go that route, Trump answered that “he doesn’t have to.”
Trump's tariff tantrums are wildly unconstitutional. The part of the majority opinion addressing Federalist 58 and the part of the opinion of Justice Gorsuch criticizing Justice Thomas’s opinion are closest to telling the truth (being faithful to our Constitution). The opinions of Justices Thomas and Kavanaugh are worse than worthless.
As SCOTUS often emphasizes, the starting point of all attempts to faithfully comply with our Constitution must begin with its plain text. Most such efforts also should begin where our Constitution begins, i.e., by acknowledging that the People acted as the supreme legislative body for the United States (and the only legislative body for the United States in 1788).
“We the People of the United States” did in June 1788 (when the 9th state ratified the Constitution) “ordain and establish this Constitution for the United States of America” to “secure the Blessings of Liberty to ourselves and our Posterity.” To protect “ourselves and our Posterity,” the People declared “the supreme Law of the Land” and declared that “the Judges in every State shall be bound thereby” despite “any Thing” anywhere “to the Contrary.” The People also declared that “all executive and judicial Officers" and all legislators "of the United States and of [all] States” are “bound” always “to support this Constitution” in all official conduct.
Contrary to the lies of Justice Thomas about legislative powers, the very first legislative power of Congress in Article I, Section 8 is “To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”
Article I, Section 10 also specifically prohibited related powers or reserved related powers to the states. Note the emphasis on absolute necessity. The president likewise cannot have the power to impose tariffs "without the Consent of the Congress" except when "absolutely necessary." “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.”
Article I, Section 9 also emphasized that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”
Moreover, Article I includes a crucial and categorical limitation on even the powers of Congress relevant here. The first sentence of Section 7 emphasizes that absolutely “All Bills for raising Revenue shall originate in the House of Representatives.”
Trump, himself, insisted that tariffs were imposed to raise revenues. He did so again in the State of the Union Address (saying tariffs will replace income taxes). Trump clearly illegally usurped the power to impose the tariffs that he arbitrarily made up. Trump’s current whining about SCOTUS not telling him what to do with all the revenue he raised only further highlights the illegality of what he did.
Vesting the powers to raise revenue exclusively in the House of Representatives always has been one of the most important pillars of the separation of powers between the sovereign people and all our public servants. Throughout American history, no exercise of actual or purported government power has made Americans literally fighting mad more than taking money out of their pockets.
One of the primary purposes of the entire American Revolution was to preclude “taxation without representation.” “No taxation without representation” is, to this day, the most famous rallying cry of the Revolution. To the people of the American Revolution, representation (regarding taxation) meant something specific—representation in Parliament, i.e., the body that had the power to legislate. That principle (and more) was addressed explicitly in our Constitution. To the people who wrote and ratified our Constitution, representation (regarding taxation) meant especially in the House of Representatives (hence the name).
The members of the House of Representatives are the representatives of the people who (from the outset) were most directly and most often subject to the approval or removal directly by the people. The second sentence of Article I emphasized that the people can replace any or even all the members of the House every two years: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” That is a crucial limitation on the power of the House to initiate laws for which we, the people, will have to pay.
All the opinions improperly emphasizing the “major questions doctrine” (the duty of Congress to be specific when it intends to delegate major powers) failed to consider the plain text of our Constitution and its plain purpose. The major questions doctrine is irrelevant to this issue. Moreover, it is a dangerous red herring.
James Madison in Federalist No. 58 emphasized the following crucial principles (at which the majority opinion in Learning Resources barely hinted):
"The [People vested in the] House of Representatives [the power to] refuse, [and vested in the House] alone [the power] propose, the supplies requisite for the support of government. [The People vested in Congress, alone, the power to] hold the purse [which is a most] powerful instrument by which we behold, in the history of the British Constitution, [the] representation of the people gradually [attaining the power of] reducing [ ] all the overgrown prerogatives of the other branches of the government [i.e., the executive and judicial branches]. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance [against the executive or judicial branch] and for carrying into effect every just and salutary measure [including those governing the executive or judicial branches]."
The People began Article I by emphasizing that “All legislative Powers” that were “granted” by the People “herein” (in our Constitution) were “vested in a Congress of the United States.” Obviously, the People vested in Congress, alone, the power to raise revenue or to govern international trade by means of any imposts or duties. The People began Article II by emphasizing that the People “vested in a President” only “executive Power.” Then, the People explained to the Congress and the President (and federal judges) the difference between legislative powers and executive powers that are relevant here.
In Article II the People commanded that the President “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.” If the president thinks tariffs are necessary and expedient, he must make the case to Congress. If he needs help making his case, “he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.”
Article I, Section 8 concluded by emphasizing that Congress, alone, has the power “To make all Laws” that are “necessary and proper for carrying into Execution [Congress’s enumerated] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof,” i.e., in the executive or judicial branches.
Article I, Section 7 commands the President to either “approve [Every Bill and] sign it” or “return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.” Then, Article II commands, the president “shall take Care that the Laws be faithfully executed.”
The foregoing provisions show generally how the executive power and the legislative power are required by the People by our Constitution to work together to represent the people and support our Constitution. Powers were separated and woven together into a fabric of government. The President must “give to the Congress Information” and “recommend to their Consideration such Measures as he shall judge necessary and expedient.” Congress must “make all Laws” that are “necessary and proper for carrying into Execution” absolutely all” the “Powers” that the People “vested” in anyone “by this Constitution.” The President must “approve [Every Bill and] sign it” or “return it, with his Objections.” Congress must address or override the President’s objections. After Congress has done so, the Bill “shall become a Law” and the President “shall take Care that the Laws be faithfully executed.”
The foregoing illustrates how ours is “a government of laws, and not of men,” as John Adams put it in the Massachusetts Constitution of 1780, as Chief Justice John Marshall (writing for SCOTUS) reminded us in Marbury v. Madison in 1803, and as Justice Scalia reminded us in his dissenting opinion in Morrison v. Olson in 1988.